herry julius nyela vs sauda mtunguja rajabu 2018 tzhclandd 530 3 august 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 108 OF 2016 (Arising from Land Application No. 60 o f 2015 o f Coast Region at Kibaha) HERRY JULIUS NYELA.............................................. APPELLANT

VERSUS SAUDA MTUNGUJA RAJABU.................................RESPONDENT

JUDGMENT 14/ 5/2018 & 3 / 8/2018 MZUNA, J.: This is an appeal by Herry against Sauda. He is challenging the judgment of the District Land and Housing Tribunal which found that the application which was filed at the District Land and Housing Tribunal was res judicata to Application No. 59 of 2014 at Bwilingu Ward Tribunal. During hearing of this appeal, the appellant was represented by Mr. Mboje, the learned counsel while the respondent appeared in person. The main issue is whether the application which was filed at the District Land and Housing Tribunal is res judicata? Arguing in support of the application, the learned counsel submitted that it was wrong to find that one Salome Kimaro Alphonce sued on behalf of the appellant in her capacity as a mother without the record showing that she sued as a Next friend or on his behalf. He argues that parties are not the same and therefore the application does not fall in the category of res judicata as well stated under section 9 of the Civil Procedure Code Act, cap 33 RE 2002. That there was need to ascertain issue of locus stand when mother sued on behalf of the said son without proof that he was either a minor, insane, via power of Attorney, as representative capacity or administrator of estate of the deceased, otherwise the lack of express reasons and legal justification of the mother to sue on behalf of her son then one

Salome Kimaro Alphonce was just "a busy body knocking court doors without locus standi." That, failure of the pleadings to reflect that Salome was suing on behalf of Herry proves that the parties never litigated under the same title in the former suit thus res judicata could not stand in absence of this very important ingredient. 2 It is therefore submitted that as the appellant was not reflected anywhere in previous proceedings the proper avenue of the appellant to access justice in court rooms is by making a complaint against the respondent so as to avail the appellant with the right to be heard and that it is improper for the trial Chairman to rule that the appellants clam is res judicata. In response, the respondent said that the Honourable Chairman did not make an error in law and fact in holding the appeal as resjudicata. Section 9 of the Civil Procedure Code, Cap 33 RE 2002 is the governing law and it gives five conditions which in their combination constitute res judicata. I agree with the learned counsel for the appellant that these conditions are:- 1. The matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit 2. The former suit must have been between the same parties or privies claiming under them.

3. The parties must have litigated under the same title in the former suit 3 4. The court which decided the former suit must ha ve been competent to try the subsequent suit 5. The matter in issue must have been heard and finally decided in the former suit The only disputed condition is No. 2, that is whether it was between the same parties. The District Land and Housing Tribunal at page 5 of the judgment stated that: - "In the said judgment o f the Ward tribunal in Land Case No. 59/2014 Edah Francis Shirima gave evidence for the complainant, Salome Kimaro Alphonce and she stated inter alia that the suit plot was purchased in1996and the purchaser bought it in the name o f her son, Heri probably, the said Heri is the applicant hereof. According to the records o f thejudgment o f the lower Tribunal even the witnesses for the respondent who witnessed the purchasing o f the land by Salome Kimaro Alphonce in 1996, one Rashid Mfaume Ally testified to the effect that the said Salome bought the plot in the name o f Heri. Moreover, the respondent submitted that the applicant hereof participated fully in the hearing o f the case at the lower Tribunal and henceforth he was fully aware o f the case but he took no action to make sure that he participate orjoined (sic) to that case if really he has any interest thereto..." If as the facts show, the appellant's mother took up the matter no

doubt as the purchaser of the suit plot for and on his behalf but kept mute until the judgment was decided, then he is estoped to say he was not a party thereto. That is stated under section 23 (b) of the Tanzania Evidence Act, Cap 6, RE 2002. The appellant by necessary implication took part in the former proceedings as the subject matter is the same "actually" or "constructively" in view of the decision by Othman, JA (as he then was) in the case of The Registered Trustees Chama Cha Mapindizi vs. Mohamed Ibrahim Versi and Sons and Another, Civil Appeal No. 16 of 2008, CAT at Zanzibar (unreported). The second suit was res judicata to the Land Case Application No. 59/2014 which had been conclusively determined by a competent Ward Tribunal. Parties who were litigating under the same subject matter are the same in the former and the subsequent suit. The remedy was to file appeal not institution of a fresh case. 5 If I may hasten to add, disposition as defined under section 2 of the Land Act, Cap 113 RE 2002, is based on sale agreement. Parties were the appellant's mother one Salome and the late Mama Yuda. The appellant cannot step into the shoes of his mother who is still alive and had failed to prove such ownership and never appealed. Above all section 18 (2) of the Land Disputes Courts Act, Cap 216 RE 2002 allows representation by a relative at the Ward Tribunal upon request. The defect not to include words like "under power of attorney" or "suing as a next friend" is only on form not substance. It cannot affect the results. Salome had locus standi not as alleged that she had no locus standi. This appeal is devoid of merits and is hereby dismissed with costs. 6